Burden of Proof

Can You Elect a Dead Man?

Aired October 31, 2000 - 12:41 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Can you elect a dead man? Just two weeks ago, Missouri Gov. Mel Carnahan died in a plane crash. But one week from today, his name will appear on the ballot for the United States Senate, and he's leading in the polls.

(BEGIN VIDEO CLIP)

JEAN CARNAHAN, WIDOW OF SENATE CANDIDATE: Should the people of Missouri elect my husband, I pledge to take their common dreams to the United States Senate. Now the choice is up to the people of Missouri. Mel always believed in them, and I do, too.

SEN. JOHN ASHCROFT (R), MISSOURI: I'm not campaigning against anybody right now, I'm campaigning for the United States Senate. And I'm campaigning for some ideas that are important for the future. And so I don't want to be -- quibble about that, but I'm not campaigning against anyone.

(END VIDEO CLIP)

ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

On October 16, tragedy struck the state of Missouri. While on a campaign swing, Gov. Mel Carnahan, his eldest son and an aide were killed in a plane crash. Carnahan, a Democrat, was challenging the incumbent John Ashcroft for a seat in the United States Senate. The governor's death was so close to election day it was too late to remove his name from the November ballot.

GRETA VAN SUSTEREN, CO-HOST: Now, acting Gov. Roger Wilson says he'll appoint the late politician's widow, Jean Carnahan, if voters elect her deceased husband. And yesterday, she stepped into the political spotlight, announcing her intention to accept any fruits of an election victory.

(BEGIN VIDEO CLIP)

CARNAHAN: So it was a very personal decision that I made. And I just so much believed in the dreams and the hopes that my husband had, I didn't want them to die, and I want to be a part of helping them stay alive. And there are a lot of Missourians who feel the same way. (END VIDEO CLIP)

VAN SUSTEREN: Joining us today from Jefferson City, Missouri is Missouri Attorney General Jay Nixon. And in St. Louis, we're joined by law professor Ronald Levin.

COSSACK: And here in Washington, Megan Scott (ph); Mark Braden, former general counsel to the Republican National Committee; and Brandon Messina (ph). And in the back, Erin Houston (ph) and Christine Chan (ph).

I want to go right to you, Ronald. Tell me what will happen if, in fact, the Missouri voters decide to elect Gov. Carnahan, who, of course, is deceased. Will his wife then become nominated -- then become the senator? And is that legal under Missouri law?

RONALD LEVIN, LAW PROFESSOR: Well, under Missouri law, if Mel Carnahan gets the greatest number of votes, then there's a vacancy. And as the statute provides, the governor then has the power to make an appointment. He has said that he's going to appoint Jean Carnahan.

COSSACK: But isn't that a possible violation of federal law in that you are promising something for votes?

LEVIN: No, he -- well, in the first place, he isn't promising, he's making a statement. But even in this context, the law doesn't look on that as a corrupt bargain. It's not like buying someone's votes.

There was a case in Kentucky a few years ago in which a man was prosecuted for saying that if he was elected he would be -- he would give his salary back to the state. And the Supreme Court said, well, that's not the kind of bargain that we punish, that's just making a promises to the voters -- not that dissimilar to what Gov. Bush and Vice President Gore are saying when they say, if you elect me, I will give you a tax cut. It's just the normal political process and not the kind of corrupt bargain that the law punishes.

VAN SUSTEREN: Jay, before we further explore the issues and the law, I'm curious, what has Jean Carnahan been doing for the last decade or two? And is she the traditional wife at home or does she have a job? What can you tell us about her?

JAY NIXON, MISSOURI ATTORNEY GENERAL: Jean Carnahan has been very active leading the fight for kids and education here in Missouri. I served with Gov. Carnahan in a number of positions over the last two decades, and Jean has been by his side, and, quite frankly, in front of him when dealing with kids and literacy. And as you step outside the governor's mansion in Missouri today, there's a living statement there, the beautiful, beautiful fountain that's there representing kids that Jean worked to place there because of children's groups working together in Missouri for the last 10 years.

COSSACK: Mark...

VAN SUSTEREN: Mark, let me play devil's advocate with you. Jean Carnahan, if she -- if Mel Carnahan is elected next week and she's then appointed in January to fill the seat in the U.S. Senate, is there any possible way the U.S. Senate could refuse to actually let her assume a seat in the U.S. Senate?

MARK BRADEN, FORMER GENERAL COUNSEL, RNC: Well, of course. The answer is that who sits in the United States Senate is solely determine by the United States Senate. So there are plenty of precedents for people who the Senate questions whether or not they've been actually elected by the voters of that state having the seat.

Sen. Byrd, who most certainly is nobody's definition of a Republican, has expressly said on the floor of the Senate that who sits in the Senate is exclusively determined by the members of the Senate.

COSSACK: All right, let's break this down a little bit. Let's suppose then that Gov. Carnahan does receive the most number of votes and the lieutenant governor goes ahead and appoints his widow. Now, she then receives a certificate of election from the state of Missouri, shows up at the Congress, at the Senate and says, here I am, I'd like to be sworn in. Could the Senate, under those circumstances under which Missouri followed its own state law, and lawfully then go ahead -- went ahead and did what the law Missouri says is fine for the state of Missouri -- could the Senate then say, we refuse to seat Mrs. Carnahan?

BRADEN: Missouri's law is Missouri's law. The Constitution of the United States is something separate that makes the determination of who can sit in the Senate. And the Senate looks at the U.S. Constitution and makes its own determination. We don't have to go back that far. There is no senator in the role of Sen. Wyman from New Hampshire. Sen. Wyman, who was Republican, showed up here with a certificate from New Hampshire, was not seated because the majority of the Senate decided that New Hampshire's law was inappropriate, and they had a different interpretation of how the vote should be counted.

So there is precedent. The House of Representative 18 years ago didn't seat a Republican member who had a certificate of election from Indiana. The Indiana law said he should be seat. The House of Representative had a different opinion. Clearly -- and there isn't any question about this -- who sits in the Senate is a determination for the United States Senate.

VAN SUSTEREN: Ron, let me ask you to be a very creative lawyer and assume that you are representing a bunch of Republicans back in the state of Missouri who think it's extraordinarily unfair, perhaps, to require Sen. Ashcroft to run against a deceased man. Can you think of any creative way, any creative lawsuit in an attempt to thwart the possibility that the widow could serve in the U.S. Senate?

LEVIN: Well, I think you just heard one theory put forward, but I don't think it's a very strong one, because the Constitution itself in the 17th Amendment says that if there's a vacancy, the governor of the state can fill it on a temporary basis. That language is so clear I very much doubt there could be a strong legal challenge to it even though it is true that the Senate is the one that applies it. COSSACK: But wouldn't you argue, and contrary to that position, say there's a vacancy that could never be filled if you're asking voters to vote for someone who's deceased? By definition there's going to be a vacancy even if you elect Gov. Carnahan. I mean, how can you say there's a vacancy anymore whether you elect him or there isn't?

LEVIN: Well, the vacancy occurs by operation of law. And Missouri statutes provide that in that situation, if the deceased candidate gets the most votes, then that vacancy exists. So people are...

VAN SUSTEREN: All right, we're going to take a quick break.

And up next, we're going to take a quick look at the legal and political positions of the two candidates listed on the Missouri Senate ballot. And will Jean Carnahan toe her husband's political line? Stay with us.

(BEGIN Q&A)

Q: A federal judge has ruled that a lawsuit filed against the Pentagon by former members of the military can be expanded into a class-action lawsuit.

Why are the plaintiffs suing?

A: They were kicked out for being overweight, and forced to return enlistment bonuses. Lawyers estimate between 5,000 and 10,000 people could join the suit.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Two weeks ago a plane crash claimed the lives of Missouri Governor Mel Carnahan, his eldest son and an aide. Carnahan was running for the U.S. Senate, and the acting governor has now pledged to appoint Carnahan's widow to the seat if the voters elect the late candidate. And yesterday, Jean Carnahan announced that she would accept such a post.

Jay, let me go to you in terms of the legal issues that divide the two candidates, or at least the widow and Senator Ashcroft in Missouri. I remember, in January of '99 the pope visited Missouri; as a result, then, Governor Mel Carnahan commuted the death sentence of a man who was on death row.

Is the death penalty in Missouri likely to become -- or is it an issue that the voters of Missouri are looking at this election?

NIXON: I really don't think so. Governor Carnahan presided over the execution of 38 convicted murderers while he was governor, Ashcroft over 7. The one act, on Meese, is a stand-alone act. It was not used in any major political ads during the campaign, and we haven't seen the death penalty be a major issue here in Missouri. COSSACK: What is the differences? We understand that Senator Ashcroft was on the judiciary committee, so we could -- that would be a major impact if he was taken off that judiciary committee.

NIXON: Well, I think it's important that, in that role, and then going straight to the floor of the Senate he helped defeat Judge Ronnie White, who was appointed to the state Supreme Court by Mel Carnahan, the first African American member of that court; a fine man who was defeat on the floor of the Senate with John Ashcroft's leadership. And that is one area where there is a clear split between the two candidates.

VAN SUSTEREN: Ron, where are they divided -- the two candidates -- most significantly? And let me ask you, sort of, a sub-question to that: Is there any place where the governor and Jean Carnahan were divided, at least publicly, that we know about?

NIXON: You mean where Mel Carnahan and Jean Carnahan were divided from each other?

VAN SUSTEREN: That's right. My first question is whether the two candidates, Senator Ashcroft and Jean Carnahan are divided on any particular issues that are significant; and, secondly, even if there was a division within the family -- the Carnahan family -- on any legal issues, if you know.

NIXON: I don't know of such a division. I think this campaign is shaping up, not so much as a contrast between Jean Carnahan and John Ashcroft's views, but a choice of whether the public wants to reelect John Ashcroft to a six-year term or let the governor appoint Mrs. Carnahan to a two-year term which would be followed by a regular election.

COSSACK: Mark, in terms of the difference between the candidates and, sort of, the unknown views, I suppose, of Mrs. Carnahan, although one could assume that they're similar to her husband -- would the Senate have any -- would that have any impact on the Senate as to whether or not they would feel it'd be proper to seat Mrs. Carnahan, in light of what we've already discussed?

BRADEN: Well, I think the basic, sort of, fairness argument is the question of, are we really getting an election here, or are we getting an appointment by a lame-duck governor?

I mean, if she wanted to run for the office, it was available for her to run as a write-in candidate. This sort of switch and bait, this effort to, sort of, subvert voters really...

COSSACK: Well, but I mean...

VAN SUSTEREN: But, you know Mark, the funny thing is, Mark, I...

COSSACK: Hold on one second -- but the timing didn't really allow her to run as a write-in candidate.

BRADEN: No, actually, last Friday -- the deadline for filings of write-in was as late as last Friday. She most certainly could have run as a write-in candidate. And, most certainly...

COSSACK: Talk about bait and switch.

BRADEN: ... if you decide to have a special election in one circumstance, that makes sense; but it's not a question of having an election where a lame-duck governor appoints. It's simply -- that's, I think, is what's going to get in the pit of everyone's stomach in the Senate.

VAN SUSTEREN: You know, Roger, I actually agree with Mark because, you know, people may think that a husband and wife may agree on certain issues, but now it's a done deal; we know that if Mel Carnahan is elected his wife will be seated. But frankly, you know, men, women, husbands and wives sometimes disagree; and maybe the better thing would have been to put her on the ballot, but her up to the challenge and find out what her thoughts are so the voters can make a decision based on informed -- I mean, based on information.

COSSACK: But Jay, isn't that really kind of -- wasn't that really sort of -- A: It's an impossibility to put her on the ballot, although Mark suggests that she could have run as a write-in. Why not?

NIXON: Talk about bait and switch. Here's the Republican Party, on national TV, saying that what Jean Carnahan has done, suffering through the death of her husband, is some sort of bait and switch with a governor who's now governor of the state of Missouri.

And they're changing tactics once again on what the legal issues are. Two weeks ago it was the Hatch Act; a week ago it was quality to serve; and now they're trying to throw in another third theory just to suppress votes. This is not even in the same zip code as a legal argument.

VAN SUSTEREN: Ignore that. Jay, ignore that; I mean, forget -- there's always going to be, like, pointing fingers back and forth between the two parties. But in terms of the voters making the decision next week when they vote for a United States Senate it might not be a bad idea if, at least, they had some information of where Jean Carnahan stands on the issues. She may agree with her husband -- maybe she's like me, maybe sometimes she disagrees with her husband.

COSSACK: Or even with me.

VAN SUSTEREN: I disagree with him, too.

NIXON: Jean has written a number of books, Jean has spoken across the state hundreds of times, she's appeared in public hundreds of times and she's been an active participant, and testified in the legislature and worked with us on countless measures for education and for kids.

COSSACK: Why didn't she write-in? Why didn't she have her ballot -- why didn't she become a write-in candidate?

NIXON: I just don't think it's fair for people to say that, as the Carnahan family sat grieving, that they were supposed to sit around the kitchen table and figure out whether or not what the most effective way to run was. Governor Wilson said he would appoint her. She sat with her family quietly and made a determination as to whether she will serve, and she's announced that.

VAN SUSTEREN: And unfortunately I have to cut you off. And, of course, we don't mean to, you know, add further tragedy to the Carnahan family. But, anyway, that's all the time we have for today. Thanks to our guests and thank you for watching.